| Ambrosino v Village of Bronxville |
| 2009 NY Slip Op 00318 [58 AD3d 649] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Joseph Ambrosino, Appellant, v Village of Bronxville etal., Respondents. |
—[*1] Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), forrespondents.
In an action to recover damages for discrimination in employment on the basis of disabilityin violation of Executive Law § 296 and breach of contract, the plaintiff appeals from somuch of an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 24,2008, as granted that branch of the defendants' motion which was to dismiss the second cause ofaction alleging breach of contract on the ground that the plaintiff failed to exhaust hisadministrative remedies in accordance with a collective bargaining agreement and, sua sponte,dismissed the first cause of action alleging employment discrimination on the same ground.
Ordered that on the Court's own motion, the notice of appeal is deemed an application forleave to appeal from so much of the order as, sua sponte, dismissed the first cause of action, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof, sua sponte,dismissing the first cause of action; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
On May 14, 2007 the plaintiff's employment with the Village of Bronxville (hereinafter theVillage) Department of Public Works (hereinafter the DPW) was terminated. Pursuant to articleXVI of the collective bargaining agreement (hereinafter the CBA) that was in effect between theVillage and the International Brotherhood of Teamsters Local 456 (hereinafter the Union), theUnion, on behalf of the plaintiff, filed a grievance. Rocco V. Circosta, the DPW Superintendent,[*2]denied the grievance in the first step of the grievanceprocedure. The Village Administrator denied the grievance in the second step of the grievanceprocedure. While the third and final step provided for nonbinding or advisory arbitration in theevent the grievance was not earlier resolved, the plaintiff did not comply with the third step.Instead, he commenced the instant action against the Village and Circosta (hereinafter togetherthe defendants), setting forth a cause of action alleging employment discrimination based upondisability and a cause of action alleging breach of contract.
The defendants moved to dismiss the first cause of action alleging employmentdiscrimination on the ground that the plaintiff failed to submit to an oral examination pursuant toGeneral Municipal Law § 50-h, and the second cause of action alleging breach of contracton the ground that the plaintiff failed to exhaust his administrative remedies in accordance withthe CBA. The Supreme Court denied that branch of the defendant's motion which was to dismissthe first cause of action for employment discrimination. The Supreme Court granted that branchof the defendants' motion which sought dismissal of the second cause of action on the basis ofthe plaintiff's failure to exhaust his administrative remedies, and, sua sponte, dismissed the firstcause of action on that ground. We modify.
"As a general proposition, when an employer and a union enter into a collective bargainingagreement that creates a grievance procedure, an employee subject to that agreement may not suethe employer directly for breach of that agreement but must proceed, through the union, inaccordance with the contract" (Matter of Board of Educ., Commack Union Free School Dist.v Ambach, 70 NY2d 501, 508 [1987], cert denied sub nom. Margolin v Board of Educ.,Commack Union Free School Dist., 485 US 1034 [1988]; see Matter of Brown v Countyof Nassau, 288 AD2d 216, 217 [2001]; Matter of Serringer v Board of Trustees of Vil. ofTuxedo Park, 265 AD2d 561 [1999]). This rule equally applies to employees who challengethe termination of their employment based upon the employer's alleged breach of a collectivebargaining agreement (see generallyMatter of Amorosano-LePore v Grant, 56 AD3d 663 [2008]; Matter of Hammond v Village of Elmsford,8 AD3d 484, 485 [2004]). Here, the CBA created a grievance procedure for theresolution of disputes concerning the interpretation or application of a specific term. Since theplaintiff, in the second cause of action, challenges his termination by alleging that it was without"just cause," and thus in violation of the CBA, such dispute was covered by the CBA, and heshould have completed the three-step grievance procedure set forth therein. Since he compliedwith the first two steps but failed to take the final step, which involved submission of thegrievance to arbitration, he failed to exhaust his administrative remedies, and the second cause ofaction was properly dismissed on this basis (see Matter of Murray v Downey, 48 AD3d 817, 817-818 [2008]).
The Supreme Court erred, however, in, sua sponte, dismissing the first cause of actionalleging employment discrimination on the basis of the plaintiff's failure to exhaust hisadministrative remedies. As a threshold matter, the defendants never set forth this ground in theiraffirmation in support of that branch of their motion which was to dismiss the first cause ofaction, and the plaintiff was deprived of an opportunity to submit any additional proof he mighthave had in opposition. As such, the Supreme Court erred in, sua sponte, dismissing the firstcause of action (see During v City ofNew Rochelle, N.Y., 55 AD3d 533 [2008]; Abinanti v Pascale, 41 AD3d 395, 396 [2007]; Jacobs v Mostow, 23 AD3d 623,624 [2005]). Moreover, the first cause of action alleged employment discrimination based ondisability pursuant to the Human Rights Law (see Executive Law § 292 [2];§ 296 [1] [a]). Even though a collective bargaining agreement may be in effect, anemployee does not forfeit his or her right to a judicial forum for a claimed discriminatorydischarge (see Wright v Universal Maritime Service Corp., 525 US 70, 75-76 [1998];Grovesteen v New York State Pub. [*3]Empls. Fedn.,AFL-CIO, 265 AD2d 784 [1999]). In order for a collective bargaining agreement to effect awaiver by an employee of his or her rights to a judicial forum, the waiver must be "clear andunmistakable" (Wright v Universal Marine Service Corp., 525 US at 82). Here, the CBAdid not contain any provisions regarding the resolution of disputes involving employmentdiscrimination, let alone any clear and unmistakable language waiving an employee's right to ajudicial forum for such claims. Therefore, the Supreme Court erred in, sua sponte, dismissing thefirst cause of action on the ground that the plaintiff failed to exhaust his administrative remedies.
The remaining contentions either are without merit or have been rendered academic by ourdetermination. Skelos, J.P., Dillon, McCarthy and Eng, JJ., concur.